For those interested in the law of riparian rights and foreshore use, the case of Arbutus Bay Estates Ltd. v. Canada (Attorney General) is one to watch as it unfolds this year. This case is about the intersection of private property rights and the right of the general public to access a public wharf.
The dispute relates to a wharf on Mayne Island known as the Horton Bay Wharf and a public road leading to the Wharf – known as the Wharf Access Road. The Road is situated on Lot A, which is owned by Arbutus Bay Estates Ltd. ("Arbutus Bay"). The Wharf is situated on the water lot adjacent to Lot A. There is an easement (dating back to 1959) and a right of way (dating back to 1960) which grant to the Province certain rights to construct and operate access to the Wharf through Lot A.
In 2013, Arbutus Bay initiated legal proceedings against Capital Regional District, the Attorney General of Canada and the Province of British Columbia alleging (among other things) the following:
"8 The plaintiff alleges that Canada has "expanded and extended" the wharf since 1960 to increase the size of the facilities by over 250% in area, and has built "structures and gangways which it located on and anchored to Lot A without the consent of the plaintiff". To the extent the structures and gangways are located on Lot A, the plaintiffs allege the structures and gangways constitute a trespass on Lot A.
9 The plaintiff alleges that the right-of-way does not authorize use of the right-of-way by "the public at large, or by other invitees or licensees."
10 The plaintiff's claims are for "declarations and damages arising out of alleged nuisance, trespass, and interference with riparian rights occasioned by the use and operation of Horton Bay Harbour", an injunction restraining the defendants from trespassing on Lot A, a declaration that the right of way is invalid or unenforceable, and other related relief."
(For reference, see 2014 BCSC 1049)
The matter was initially set for trial in April, 2014, but was adjourned to October, 2015. At that time, Arbutus Bay sought to re-open its case in order to adduce further evidence. In a recent decision, the Court allowed Arbutus Bay to reopen its case for the purpose of adducing limited expert evidence. The trial is now set for September, 2016.
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